OUI and Personal Injury – Expert Network Interview, August 3, 2016

Teddy Panos and Leslie Bodor from Expert Network Interview speak with Attorney Mike Bowser on multiple topics, including Massachusetts and New Hampshire OUI/DWI charges and personal injury cases settling or going to trial.

Teddy Panos: Time to welcome in a member of our expert network, attorney Michael Bowser from Chelmsford. Good morning, counselor, how are you sir?

Mike Bowser: Good morning, Teddy, good morning, Leslie. Excuse me, how are you?

Teddy: We’re doing well. Long time no chat. How have you been?

Mike: Busy. Very, very busy.

Teddy: When you touch base and said, let’s come in and have a discussion, I thought, “Is it the night before Thanksgiving already? Is it New Year’s Eve?”

Mike: No, that practice continues to roll right along.

Board Certified OUI Specialist

Teddy: It certainly does. Look, you’re a very, very well-known, you’re renowned for your work as an OUI specialist. One of a handful — was it only about five certified in all of New England, correct? Board Certified?

Leslie Bodor: Which make a difference. Yes.

Personal Injury Practice

Teddy: You do all sorts of other practice, you do an awful lot of personal injury work?

Mike: I do. I’ve done that literally since law school. I ended up with a large firm when I was in law school that did a ton of personal injury work and I caught the bug then and it’s always stayed with me. It’s always been a part of my practice and ironically some people were surprised to find out that I in fact, handle those types of cases. By experience, by reputation I have always tried one or two of those a year. The nice transition is I try 40 or 50 jury trials a year on the OUI in the criminal side and it leads to an ability to walk into a courtroom on a serious personal injury matter and I’m able to stand up in front of a jury and try some cases successfully and I always have.

I’ve had some very, very big verdicts over the years and thankfully, I’ve also had some decent settlements because the courtroom process is just fraught with risk. It’s very difficult. I think one of the hardest things a lawyer can do is to walk into a courtroom and convince a jury of 12 people that his client is actually deserving of compensation or their protection. That’s how I try to phrase it. This person is worthy of the protection that a jury can provide. It is one of the hardest things I do, is try a personal injury case to verdict and I’ve had it both ways. I’ve had tremendous success and I’ve had some heartbreaking losses. Had a couple of those recently and you learn from experience.

Teddy: You were just talking off air about a case that you thought you had won. As a matter of fact, close to the verdict the other side offered you a settlement that was above what you would have accepted at one point.

Mike: It was a classic example of the risk associated with a trial. It was a slip and fall and people say slip and fall and they just think, “God, you fell on a banana peel,” but it was at a supermarket. There was a large area of water and it was marked with a single cone at the front of an aisle. My client [of] 78 years old came from the back of the store, the back of the aisle, she couldn’t determine where the wetness ended or started. She moved away from the cone and she hit some dampness about 12 feet from the cone and took a really nasty fall and broke some ribs and [experienced] a back injury. Serious injuries and at the mediation prior to going to trial, they offered like $13,000.

We probably would have settled for $40,000, and then you fast forward three months later and thousands of dollars more in expenses and hours and hours of preparation. I’m in the midst of a jury trial and literally as I walk into the courtroom to start my closing argument, the very last piece of the case before the jury gets the deliberate, the store lawyer said, “Will she take $50,000?’’ And he didn’t give it to me, but he wanted to know would she take it if I can get it.

I was kind of pissed actually, because I’m like could you wait any longer before come to your senses and putting fair money on the table and my client at that point was eighty years old, and she said to me I want you to finish because she was very proud of the work that we were doing and she wanted to finish. The jury got the case. They came back an hour and a half later with what’s called the defense verdict meaning they found no liability on the half of the store. The judge was shocked, I was shocked, the defense lawyer was shocked, my client was shocked, and we got the end result with zero.

Teddy: I’m always fascinated about how the mechanics of these types of decisions work. When you say there was a settlement offer made and you said that your client decided, “No, I don’t want to accept this.”

Mike: Ultimately it’s their decision, right?. My job again, I’m in the protection business, so my job is to protect my client. And in the injury practice, that’s to recover for them as much money as I can and what I think is fair money. And I tell people all the time, “I think that’s fair, that’s a decent offer [and] you should consider taking it.” If I don’t I’ll say “I think that’s garbage and we should keep going.”

The only pressure that I can put on the other side is trials. I put almost everything into suit and I move cases towards a trial date as quickly as I can. By way of example, I had one this year where the woman came to see me there was an $11,000 offer on the table two weeks before the statute of limitation [ran out]. She had no lawyer and I took the case. We put it into suit and you fast forward a-year-and-a-half later and we settle that for $60,000.

Obviously, we were able to get her what was decent, fair money. Had she not pursued it, the statute of limitations would have run [out and] she would have accepted a very low ball offer. We had another one that was $6,000 on the table and we settled it for $35,000, and these cases are in context. You say $60,000, $35,000, but for each one of those cases, that was fair money. That’s my breakpoint if it’s fair you should consider taking it because God knows what can happen in a courtroom.

Teddy: As you’ll see, these kind of things happen all the time and if a company offers a settlement early on in any kind of thing, my advice would be, get a lawyer. Don’t ever accept the settlement. At least chat with an attorney to determine what your rights and your possibilities are, because even when a company acts like they want to do the right thing and is concerned and sometimes maybe they are being fair. They’re not going to give you what they would normally give you if you pursue the matter forward.

Mike: From the other side, almost exclusively dealing with insurance companies, some companies are self-insured, meaning it’s their money. They handle their own claims in-house with their own dollars. Almost 90% of my cases are with an insurance company. The insurance company’s goal is to get out of that case for as little as possible.

Teddy: And get to the side before it ever get to court.

Understanding Liens

Mike: My job is to get as much money out of that case before trial. Those two positions never meet. It’s difficult and one of the other things that we deal with which people don’t understand is liens. In the Commonwealth and in New Hampshire [you might] have BlueCross BlueShield or Tuffs paying your bills because you [had an accident]. We had a motorcycle case where the lien [for] the treatment that he received that was paid for by his health insurance was $99,000 and there was just not enough insurance on that particular case.

I ended up getting the $99,000 lien reduced and paid off to $12,000, so that I was able to put the difference in my client’s pocket and sometimes that’s the best work that we can do is just reducing the lien so that the net recovery for the client is higher because there was never going to be more than X amount of dollars on that case because of the lack of insurance. That’s part of it as well.

Teddy: $99,000 is not a lien that’s a complete fall over.

Mike: Given the treatment that he received and the surgeries and the injuries, I mean that was the value and the cost of his treatment. By law, you have to pay it back if you recover against a third party. They’re entitled to get it back.

Personal Injury Cases that Go to Trial

Teddy: The story you told of you being shocked at the verdict, the opposing counsel being shocked and the judge being shocked, that highlights why in most situations there’s a settlement, right? What percentages of cases actually go to a trial and especially to a jury trial?

Mike: I mean in my practice, less than 10% of these cases go to trial. I always say try one or two a year and in the one or two that you try a year, it’s because there’s an issue as to liability. They just not necessarily damages. Usually, a lot of times there’s an agreement. Yes, your guy was hurt.

Leslie: But we don’t admit.

Mike: But we don’t admit that we caused the condition that caused the [injury]. I had one in Boston years ago, [a] slip and fall on a construction site and they offered me $200,000 workers compensation [and the] lien was $300,000. I mean that’s a net zero recovery if I were to take that money. When I said I wanted $800,000, they laughed at me. Then I got a jury verdict in Suffolk County and the net recovery was $892,000. That case went to trial because it was a liability. We had three different subcontractors and a general contractor, four different defendants and it was a really complicated, really expensive case [and] they didn’t think I could prove the liability issue.

Teddy: Generally, juries are unpredictable. You never know what they’re going to do behind those closed doors.

Mike: I love the process. I’m very comfortable trying cases to juries, but when you hand it over to them, you lose control. You get your base. You’re handing it to them and they’re going to do what they may and it can be very unpredictable. I’ve had wonderful success doing it but I’ve also had heartbreaking defeats, so that’s the nature and if you’re not willing to try cases . . .. My associate, my poor associate who does wonderful work, her name is Molly Bellai. The last two that have gone to trial since she’s been with me have been defense verdicts and we’ve had all kinds of great settlements and she thinks she’s a jinx.

Teddy: I’d fire her.

Leslie: Maybe a vacation for a week.

Mike: I said if you’re not willing to try the difficult cases to verdict then you don’t deserve the decent settlements that you get. That’s the way I approach it. I mean I’ll try anything if I have to, and as a result we’re fortunate to get some decent settlements.

When Judges Can Take Cases from Juries

Leslie: I was just curious about the judges, is it possible for a judge to step in like they do on occasion for a verdict?

Teddy: They see that on TV right?

Leslie: Well, the shake baby nanny from England.

Mike: Sometimes a judge will take a case from a jury.

Leslie: Because you said he was even shocked.

Mike: No, he was but he wasn’t going to take that decision away from them. It’s a judgment notwithstanding the verdict, meaning the judge just thinks they got it dead wrong. No jury in the world should have reached that verdict and upon request, a judge can insert himself or herself into the process and say “Yes, that verdict must be set aside.” That’s extremely rare.

Leslie: Okay.

Mike: Extremely rare.

Breathalyzer Testing in OUI Cases

Teddy: It is 7:29 here on 980WCAP chatting with Attorney Mike, member of our expert network. A couple minutes remaining, I want to to get an update if we can on the breath test.

Mike: Sure.

Teddy: We saw the issue, you actually kind of broke it here on the radio, that there was an issue with those machines not giving proper readings they weren’t

Mike: Calibrated properly.

Teddy: As a result, thousands of cases were called into question. Where are we with that?

Mike: There was a calibration issue with the machines in general that was identified by the government kind of late and disclosed to the defense bar. But also, there’s a challenge to the scientific validity of the breath testing device in the software. That type of challenge has been made against DNA, fingerprint, [and] trace evidence.

Any scientific evidence that goes before a jury is subject to a judge first determining whether it is scientifically acceptable so that jury can hear it. That had never been done with the breath testing device that’s in use. So hundreds of cases were consolidated because when they said you can challenge it, the supreme court issued the Camblin decisions and you can challenge it as a defense lawyer. Then they realize, “Well, wait a minute, now we’re going to have hundreds and hundreds and hundreds of these scientific hearings before judges across the Commonwealth.”

They consolidated them all before one judge and conquered. The BMC had its own consolidation and now those two groups are put together. They’ve given us access to two machines, so the manufacturer is actually handing over to the devices so that we can do what’s called dynamic software analysis, meaning we can test the software. Whether it’s robust, whether it’s accurate, whether it’s reliable.

Teddy: No, not word robust.

Mike: On the platform of the machine as opposed to doing it. They wanted us to do it just as a white, like a black box. They’ll give us the software on a flash drive and let us play with it on the computer but not through the machine itself. Now we’re at the point where we’re getting the machines, were going to get the software. It won’t be decided until November. We probably won’t have a final decision until 2017. All of these breath test cases that are awaiting, the decisions are going to be backed up in the courts until probably 2017.

Mike: The first level would be whether it affects the admissibility of the test. Meaning, if there’s a decision that comes down and says, “Yes,” that it’s defective per se or unreliable per se, every breath test may be excluded. I think probably where we’re going to end up is we’re just going to learn a whole lot more about the machine and how it works so that we’re able to attack the reliability of it and it will go to the weight of the evidence versus the admissibility.

Leslie: Right. The last thing I’m asking you is the breath test. I’m doing other things. This walk and turn. There’s other test to tell me [if someone’s intoxicated]. Even if you strike out a breath test, if you’re did a good work on the side of the road and you documented your case well, you won’t necessarily need that anyway.

Teddy: Lastly, you are board-certified here in Massachusetts, but also in New Hampshire. You have an office in Nashua, correct?

Mike: Yes. I’m going there right now.

Leslie: That was the ending of case by the way.

Teddy: How many Massachusetts clients do you get in New Hampshire? Because I always used to joke, I used to date a girl from Nashua. Every single night I was under suspicion of DWM, Driving While Massachusetts.

Mike: Yes. Massachusetts plates after dark.

Teddy: Those New Hampshire cops love to see a Massachusetts license. They escort you back to the board. They are so nice.

Mike: No, they don’t escort you back.

Teddy: They followed me all the way back to Things Road, tell you that much every night.

Leslie: Well, because half of them live in Massachusetts. It’s like they’re on their way home, Ted.

Mike: My practice is probably about a 150 or so drunk driving cases a year. I’d say about 65% of those are New Hampshire and 90% of my New Hampshire cases are Mass residents.

Teddy: I’ve always wondered what is the percentage of drivers pulled over, either cited or pulled over for a DWI in New Hampshire that are Massachusetts. I am willing to bet and I don’t have any statistical evidence but you might have just offered some that they disproportionately pull over Massachusetts drivers.

Mike: I would disagree.

Teddy: You would?

Mike: But I would agree that the highest percentage of non-resident DWI arrest in New Hampshire is Massachusetts people.

Mike: Hampton, Seabrook. There is no border between Mass and New Hampshire. People go back and forth daily.

Teddy: There isn’t between Texas and Mexico either, so don’t feel too bad.

Mike: Okay.

Teddy: Folks, as we always like to say, folks, don’t make the decision, don’t make the mistake to ever need counselor Bowser service for operating under the influence but we know that these things happen. Of course, if you’re looking for a good personal injury attorney, then please make that decision and get counselor Bowser. Either way, how do folks get in touch with you or your practices in either State?

Mike: The easiest way is the website, which is https://www.bowserlaw.com/ and we do have chat services, contact forms, and all the phone numbers are there for both Massachusetts and New Hampshire.

Leslie: I think it’s important to call because if you have a case, there’s a statute of limitations on some of these cases that you may not be aware of. At least make the call. Have your dates and your information handy and they’ll be able to tell you right off the bat. It’s an important call to make. Statutes of limitation are tricky.

Teddy: A lot of these instances, especially an OUI cases, come up late at night, early morning, [in the] wee hours. That way if people get to that website, they’ll be able to contact you. There’s a way to monitor 24 hours?

Mike: I get every time someone hits my website for purposes of contact, I get an email, a text, and I do, I spend a lot of time on the weekends just responding to folks and reaching out to them. Getting back in touch with them and certainly, I do my appointments on evenings and weekends for that reason because I’m usually tied up in several courtrooms every day in both states, so I do a lot of evenings and weekends as well.

You’re not going to get me [at] three o’ clock in the morning. I was in London in June and I got a phone call and I just didn’t respond to that one because it was 3:00 AM London time and didn’t get back to him until the next day.

Teddy: Hey, any idea where they’re going to set up that sobriety checkpoint now?

Mike: Is that off limits? No?

Teddy: It’s probably going to be very soon. That’s going to be used as parking for residents and commercial properties. So I’m thinking I have to set up shops somewhere else.

Leslie: It’s being reheld.

Mike: Yes, I would imagine probably further in.

Leslie: That’s got to stay there by law.

Teddy: There’s really not a good pull out area.

Mike: Right.

Teddy: That’ll be interesting.

Mike: It will be.

Leslie: They’re figure it out.

Teddy: Counselor Bowser, one more time, the web address is?

Mike: bowserlaw.com.

Teddy: Member of our expert network, attorney Mike. Always a blast to check in with you sir.

Mike: Thanks for having me.

Teddy: I should have gone to law school.

Leslie: Thank you, my friend.

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